Orissa High Court
Tapan Kumar Ray vs Susil Kumar Pradhan And Anr. on 1 February, 1991
Equivalent citations: 1991(I)OLR391
JUDGMENT G.B. Pattnaik, J.
1. Complainant is the petitioner and has invoked the inherent power of this Court Under Section 482 of the Code of Criminal Procedure, being aggrieved by the order of the Sessions judge in Criminal Revision No. 85 of 1989 who by the said order has quashed the order of the Sub-Divisional Judicial Magistrate taking cognisance Under Section 323/34, Indian Penal Code, and summoning the accused to stand trial.
2. The petitioner lodged a complaint in the Court of the Sub- Divisional Judicial Magistrate, Bhadrak, against opp. party No. 1 and two others alleging that S. I. Sri Rath Malik came to the house of the petitioner and asked him and his brothers Bula alias Rajkishore Ray and Bijiya Kishore Ray to come to the Police Station since they were wanted in the criminal cases instituted on account of trouble in village Kaupur. The petitioner and his brothers came to the police station and when they reached there the said S. I. put them inside the Hazat and locked them up. Later in the day two other persons were brought and kept inside the Hazat and sometime thereafter opp. party No. 1 with ASI Shri Sachidananda Panda arrived at the police station. Opp. party No. 1 was the Superintendent of Police at Balasore. Said opp. party No. 1 started abusing the petitioners and directed the SI and ASI to bring Rajkishore and abused them in filthy language. When Rajkishore protested, said opp. party No. 1 asked the SI and ASI to assault and pursuant to the said order, ASI Sacbidananda Panda assaulted. The Sub-Inspector of Police also gave poking blows. When the petitioner and the other inmates of the Hazat shouted, said opp. party No. 1 directed the SI and ASI to assault to petitioner and also abused the petitioner in filthy language, The petitioner was injured on receiving kicks from the SI and ASI. Opp party No. 1 thereafter left the police station. When the petitioner was produced in the Court of the Sub Divisional judicial Magistrate, Bhadrak, in connection with PS Case Nos. -121, 122, 123 and 124 of 1989, he romplained of ill-treatment and under the orders of the Sub-Divisional Judicial Magistrate was examined by the Medical Officer of the hospital. On receiving the injury report and on being released on bail, the petitioner filed the complaint against opp. party 'No, 1 and two other police officers.
3. The learned Magistrate held 'an inquiry Under Section 202, Code of Criminal Procedure/and in that proceeding two witnesses were examined on behalf of the petitioner. The Magistrate thereafter took cognisance Under Section 323/34, Indian Penal Code, against opp. party No. 1, the Superintendent of Police, the SI of Police and the ASI of Police and summoned them for trial. Opp. party No. 1 alone moved the learned Sessions judge in revision. The (earned Sessions judge by the impugned order having quashed the order of the Magistrate so far as it relates to opp. party No. 1, the Superintendent of Police, the petitioner has approached this Court).
4. Mr. Mohapatra,. the learned counsel for the petitioner, contends that the Sessions judge committed gross error and exceeded his jurisdiction in exercising his power of revision by threadbare discussing the evidence on record and interfering with the satisfaction of the Magistrate and his order taking cognisance of the offence and such an order has caused gross miscarriage of justice and, therefore, cannot be sustained. On examining the impugned order of the learned Sessions Judge ! find ample force in the contention of Mr. Mohapatra, but on the view of the fact that on-examining the materials on record, as ! do not find a prima facie case against the Superintendent of Police (opp. party No 1) Under Section 323, Indian Penal Code, I decline to interfere with the impugned order.
5. The power of the Sessions Judge in revision is certainly not wider than the power of revision of the High Court. The object of the revisional jurisdiction is to confer upon superior' Criminal Courts a supervisory jurisdiction in order to correct miscarriage of justice arising from misconception of law or irregularity of procedure and similar infirmities. (See AIR 1973 Supreme Court 799 (Amar Chand Agarwala v. Shanti Bose and another), AIR 1956 Supreme Court 144 (Pranab Kumar Mitra v. State of West Bengal and ' another). In this view of the matter, a revisional Court will not interfere with an order of the lower Court where there has been no failure of justice even though there might have been an irregularity in the proceedings of the lower Court. (See AIR 19/9 Supreme Court 661 (State of Orissa v. Nakula Sahu and others). So far as the order of cognisance of a Magistrate is concerned, a revisional Court could interfere with the same if no consideration of the entire materials as produced by the prosecution at that stage, it is of the opinion that no prima facie case is made out. A revisional Court cannot hold a detailed enquiry and is not entitled to examine and assess the evidence as if in a trial and come to conclusion one way or the other differing with the original Court. Where the Magistrate has formed his opinion on consideration of the materials before him and prima fade that opinion cannot be said to be patently erroneous or perverse, then the said opinion cannot be interfered with by the revisional Court on re-assessment of the evidence and on a detailed scrutiny and sifting of the evidence. in this view of the matter; on examining the impugned order of Sessions Judge I am of the opinion that the Sessions Judge has exceeded his revisional Jurisdiction, in re-assessing the evidence and in coming to the conclusion with regard of the prima facie nature of the case. Normally therefore the petitioner's contention would have succeeded. But examining the entire material on record, namely the statement of the complainant on oath as well as the statements of the witnesses examined in the enquiry Under Section 202, Code of Criminal Procedure, I am dearly of the opinion that no case Under Section 323/34, Indian Penal Code, has been made out against the: Superintendent of Police ( opp. party No. 1). Mr. Mohapatra appearing for the petitioner very fairly concedes to the aforesaid position but contends that since the order of the Sessions judge cannot be sustained as he has exceeded his jurisdiction, the said order may be quashed notwithstanding the fact that the materials on record do not establish a prima facie case against opp, party No. 1 Under Section 323, Indian Penal Code. 1 am unable to persuade myself to agree with this submission of Mr. Mohapatra since the power of this Court under Sec 482 of the Criminal Procedure Code can be exercised only when the Court is satisfied that there has been any flagrant and gross miscarriage of justice by the order impugned. That being the position and in view of my conclusion that on the entire materials no case has been made out against the Superintendent of Police ( opp. party No. 1 ) Under Section 321, Indian Penal Code it would be a travesty of justice for this Court to interfere with the order of the Sessions Judge on the ground that the Sessions Judge has formed his conclusion by sifting the evidence on record. Consequently, I would decline to interfere with the impugned order in exercise of my power Under Section 482 of the Code of Criminal Procedure. While declining to interfere with the impugned order, ! would however, observe that it would be open for the Magistrate to pass such other order in accordance with law as the materials on record would justify.
Subject to the aforesaid observation, this Criminal Revision is